Wickersham's Conscience

Fairbanks Concert Association presented some serious world music Wednesday night with a concert by Te Vaka, which translates as “The Canoe” in Polynesian.

Te Vaka in Concert

It’s hard to describe the music, partly because it is eclectic and partly because it includes a kind of pop-Polynesian fusion that is certainly unique in WC’s experience.

Most of the band members are from the remote islands of the South Pacific: Tokelau, Tuvalu, Samoa, Niuea and New Zealand. It’s Polynesian, but it’s very different from the Hawaia’an music most Americans are used to hearing. The group’s leader and chief songwriter, Opetaia Foa’i, mixes a kind of pop sensibility with Polynesian rhythms in some songs, and pure poly-rhythmic drumming in others. All of the lyrics were in Tokelauan, Foa’i's father’s tongue. The drumming was on Polynesian drums, but the rhythms were influenced by hip-hop as well as Polynesia. It was an interesting, compelling fusion. The drumming was simply outstanding.

Te Vaka at a Concert in Samoa

Did WC mention the dancers? Two lovely ladies, Olivia Foa’i and Tremayne Lihou demonstrated that Hawaia’an hula dancers could learn a thing or two form their Polynesian cousins. Oh, there was a male dancer, too, Talaga Sale, but, honestly, when the ladies were dancing no guy in the audience was watching anything else.

WC also enjoyed the very talented drummer, Matatia Foa’i, who played both a drum kit and a pretty amazing set of log drums, as well as the multi-talented Neil Forrest, who played flute, a kind of electric slack key guitar, drums and keyboards. The band was tight, interacted well with the audience and seemed to enjoy themselves immensely.

Did WC mention the dancers?

Props to Fairbanks Concert Association for giving Fairbanks a shot of world music that was truly from the other side of the road. It was a great show.

Did WC mention the dancers? Wow.

The title to his blog post comes from Shakespeare’s Henry The Sixth, Part 2 Act 4, scene 2, 71–78. It’s not a very good play. But it gets quoted a lot because there’s an amazing number of folks out there who, one way or another, want to “kill all the lawyers.”

The most recent is Clifford Winston, an economist and a senior fellow at the Brookings Institution, and the co-author of “First Thing We Do, Let’s Deregulate All the Lawyers.” Winston had an opinion piece in the New York Times recently, calling for the removal of the “monopoly” lawyers have. He extols perceived advantages in savings through increased competition, improved quality of lawyering and, probably, prevention of tooth decay.

While Winston never mentions it, all government monopolies are tradeoffs. On the one hand, you have the risk of increased cost and decreased quality associated with any monopoly or quasi-monopoly; on the other, you have potentially better regulation and allegedly assured quality. Winston never discusses the balance.

WC is a lawyer himself, of course, so it’s possible he is not completely neutral on the subject. But based on three sorts of experiences, WC thinks this is, on balance, a really bad idea.

First, the experience of pro se parties – citizens who represent themselves – is pretty bad. Their ignorance of the law and court procedures increases the total cost to society of the administration of justice. That’s not going to change. In a very real sense, lawyers are optional now; you can always represent yourself. In fact, the “unbundling” of legal services is a kind of middle ground between having a lawyer and being pro se. Any cost benefit analysis of lawyers needs to take into account the increased costs imposed on the judicial system by pro se litigants. If you don’t believe WC, go and watch some small claims proceedings at state court. Not the heavily edited versions on television; the real stuff.

Second, lawyers say of themselves that any lawyer who represents himself or herself has a fool for a client. Lawyers in discipline proceedings pretty much always hire a lawyer to represent them. It’s extremely difficult to bring objectivity and cold reason to your legal advice if you are the litigant. An informed client wants a lawyer who is passionate in argument, but dispassionate in advising you on your case. It’s at least as important as knowledge of the law. It involves things like the ability to assess a case and perform cost analyses of claims.

But, you say, what about having folks other than licensed lawyers advising litigants? That’s WC’s third kind of experience. In three major cases in which WC has been involved, there were “paralegals” – moonlighting lay persons, secretly acting as advisors for litigants who were nominally representing themselves. The results were uniformly disastrous. Raejean Bonham’s unlicensed “lawyer” in Palmer, Alaska cost her hundreds of thousands of dollars, probably five years of jail time and left her owing millions of dollars. In two other cases, perhaps less well known, unlicensed legal services resulted in unmitigated disasters for the litigants.

WC can’t speak for other jurisdictions. And WC doesn’t want to attempt to defend the quality of lawyers generally, or even the overall quality of lawyering in Alaska. But despite WC’s reservations about the overall quality of Alaska lawyers, deregulation is unlikely to improve that quality. There’s a word for individuals who work hard to learn and understand the law, are conscientious in assembling and presenting facts, and are skilled at communicating the law and the facts to clients, opposing lawyers, judges and juries. The word is “lawyer.” For anyone who works to develop those skills, the bar exam and bar dues are not a serious obstacle.

Some of Winston’s other points are simply misleading. For example, he points out that in “2009, the state disciplinary agencies that cover the roughly one million lawyers practicing in the United States received more than 125,000 complaints, according to an A.B.A. survey. But only 800 of those complaints — a mere 0.6 percent — resulted in disbarment.” Disbarment is the lawyer death penalty. You are thrown out of the bar and prohibited from ever practicing law again. It’s the most serious sanction there is. It really is the professional death penalty. Like the criminal death penalty, it doesn’t happen very often. Why not look instead at other forms of lawyer discipline? The answer for the same period is 12,274 lawyers disciplined, something like 10%. So about 10% of all complaints result in sanctions being imposed upon a lawyer. By misleadingly defining disbarment as the only form of discipline, Winston seriously distorts the truth. And when you actually examine those 125,000 complaints – and WC has served on a lot of bar association discipline committees – many are patently without merit, and the majority of them come from criminal defendants who are unhappy they got caught and punished.

Attorney discipline is far from perfect, but it’s not so bad as to be a reason for abandoning the current licensing procedures. Remember, too, that Alaska lawyers, at least, have to disclose if they don’t have liability insurance, and that there are quite good lawyers who will cheerfully take a lawyer malpractice case.

It’s also noteworthy that Winston argues that there’s not enough competition among lawyers while also admitting there are something like one million of us chasing legal work. One million lawyers. Tom Paxton wrote a pretty good song about that. That’s not enough? Winston seriously wants more persons practicing law? Wow.

Winston also argues that attorney discipline records should be public. WC agrees, and has pressed for on-line access to attorney discipline records for years. But that’s quite a different thing from completely deregulating lawyers.

WC is as cynical – more cynical – about the legal profession as anyone. WC collects lawyer jokes, for example. But some kind of screening and discipline function seems to serve a useful purpose. Mr. Winston hasn’t made a good case for change.

Snuff, Terry Pratchett
ISBN 978-0-06-201184-8, Harper 2011

Sir Terry, a few years ago, was diagnosed as suffering from posterior cortical atrophy, a rare variant of Alzheimer’s disease. It has affected his ability to type but not, WC is very pleased to report, his ability to craft a fine novel. He dictates now, and uses an assistant to do the parts that can’t be dictated. Physically, he may be impaired, but his mind, his sense of humor and his humanity are as sharp as ever.

Sam Vimes is a copper. When we first met him, in Guards, Guards, he was drunk and lying in the gutter of Ankh-Morpork. Over the course of subsequent novels, including Men at Arms, Feet of Clay, Jingo, The Fifth Elephant, Night Watch and Monstrous Regiment, he has advanced himself considerably, married well, fathered a son and, at the apparent whim of his boss, the tyrant of Ankh-Morpork, he has been made a Duke. But he’s still a copper, raised on the very mean streets of his city.

But now he has to face the worst terror yet: a vacation in the country, at his wife’s family estate. But of course, a copper can’t escape crime by going out of town; a copper can’t unpack his suitcase without a body turning up. But is it a murder when the victim is a goblin, mere vermin? Is it a crime? Vimes, as much as any character Pratchett’s vast body of work, reflects the values of Pratchett himself. Pratchett and Vimes regard the worst class of crime as treating a thinking creature as an object.

Sometimes the crime comes before the law.

Pratchett skillfully weaves together numerous threads. From Lord Vetinari’s initial pensive reaction to news from Pastor Oats to the strategies of Vimes’ wife, Lady Sibyl, it’s a remarkable piece of plotting. Nor is Prachett’s trademark use of humor. Here is Vimes contemplating the law of trout streams:

He wondered how you could own a trout stream because, if that was your bit, it had already gurgled off downstream while you were watching it, yes? That means somebody else was now fishing in your water, the bastard! And the bit in front of you now had recently belonged to the bloke upstream; that bloated plutocrat of a fat neighbor probably considered you some kind of a poacher, that other bastard!

One more quotation, this from Vimes’ first encounter with Miss Felicity Beedle, a very successful children’s writer, and the favorite author of Vimes’ son, young Sam:

Vimes, hand in hand with his son, walked toward the house of Miss Beedle thoughtfully, not knowing what to expect. He had little experience of the literary world, much preferring the literal one, and he had heard that writers spent all day in their dressing gowns drinking champagne.*

* This is, of course, absolutely true.

It’s what Pratchett does: ironic footnotes, wonderful characters, brilliant plots and deeply human stories, even if the stories often involve dwarfs, trolls, vampires and, yes, goblins.

It’s true that Vimes wants to arrest the gods for getting it wrong; it’s true that the Summoning Dark (see Thud!) still lies, caged inside of him; and it’s true that for all his cunning he’s not a smart man. But he is a wonderful character, and a near-perfect means for Pratchett to make his points.

Pratchett also has a gift for making points in front of the reader that don’t sink in until much later. Such as the off-hand observation that Arachne,a filing clerk at the Anhk-Morpork embassy in another country, collects venomous spiders.

Pratchett. writing about the fantasy genre, quoted Chesteron’s defense of fantasy literature and children: “The objection to fairy stories is that they tell children there are dragons. But children have always known there are dragons. Fairy stories tell children that dragons can be killed.” Pratchett shows us that even the very worst dragons can be slain.